January 4, 2010

Justice Sandra Day O'Connor

Retired U.S. Supreme Court Justice Sandra Day O’Connor is the first guest on HORIZON’s new set in Eight’s new downtown Phoenix studios. O’Connor will discuss her Arizona heritage, political and judicial career , and her current efforts to improve civic education and return civility to government.

Ted Simons: You might have noticed the set looks a little bit different than it did way back in 2009. Today, for the first time, we're broadcasting in high-def Tibetan from our new studios in the heart of downtown Phoenix. In fact, all of 8 is now located in this building we share with ASU's Cronkite school of journalism. As I mentioned at the top of the show, "Horizon" was launched in 1981, weeks after the senate confirmation hearings of Supreme Court nominee Sandra Day O'Connor. The historic event became a dress rehearsal for "Horizon" when soon-to-be host Michael Grant was sent to the nation's capitol to cover the hearings for PBS. Nearly three decades later, "Horizon" is still going strong, and so is Justice O'Connor O'Connor. She retired from the high court in 2006, but the first woman on the Supreme Court is still quite busy. She's leading efforts to engage the public in civic education, and she's putting her name to efforts to return civility to government. Here now, to talk about all of that and more is Arizona's own Justice O'Connor Sandra Day O'Connor. What a special pleasure having you here.

S O’Connor: Thank you, Ted. I'm glad to be here.

Ted Simons: Well,thank you so much. We just saw some tape back in the day, early days of "Horizon," and your confirmation hearings. Your first kind of foray into that Washington --

S O’ Connor: I have not forgotten those days.

Ted Simons: What was it like.

S O’ Connor: Very intense. And the hearings are conducted in a very large conference room in the capitol building in the senate. One of the senate buildings. And there was space maybe 30 feet of space between where I sat at a table like this, and the place where all of the senators of the judiciary committee were seated. And every bit of the space in between was occupied by reporters and people with cameras who were trying to cover the event. They were all over the floor, there were more reporters there than had attended the Watergate hearings. It was the most who had ever come to the capitol. They wanted to see something about this woman nominated for the Supreme Court. And so you could hardly make your way through the committee room. It was just jammed.

Ted Simons: Were you nervous?

S O’ Connor: Well, of course I was very concerned. I had a microphone pinned on, and there were lights, and what happens today is much like what happened then. The senate judiciary committee has a number of members, and each of them are given two and sometimes three opportunities to have a certain amount of time to ask questions of the nominee. And they like to use all their time, because it's free television air time, and given gavel-to-gavel coverage for these members of the senate, and they love that. They don't have to pay for it. It's free. And they ask tough questions, and so it's an endless process and seems -- it seems to the nominee.

Ted Simons: But you got through the process.

S O’ Connor: Somehow.

Ted Simons: And you started such a stellar career, but I'm curious early on, what was the reaction by the other justices?

S O’ Connor: Oh, well, there were only eight of them remaining, and they were often divided 4-4, and they needed another member of the court, male or female. Arizona or not. They needed a living, breathing justice to join them to make nine.

Ted Simons: But when you did join them, and just not even -- away from the bench, I mean, were there looks? Did you have to prove yourself?

S O’ Connor: No, no, I don't think so. I didn't. They were all welcoming and they all said let me know how I can be helpful. Of course they're too busy to be helpful is the fact of the matter. Everyone has so much to do nobody has time for idle chitchat. But they were very happy to get a ninth member of the court, and they were all cordial.

Ted Simons: There wasn't any sense -- no hard looks, or the idea that we've been here so long, why are all those cameras train order her --

S O’ Connor: no, no. They understand the process.

Ted Simons: When you look back on your time on the court, and some of the decisions you made, I don't know how reflective a person you are. Not very?

S O’ Connor: I don't look back a lot.

Ted Simons: If you were to look back, or the chance opportunities you have to do so, were there decisions that you kind of look back and go hmm. Maybe I should have done X and Y instead of Z.

S O’ Connor: Actually, I don’t do that. And I’ll tell you when I first became a trial court judge in Maricopa County, Arizona, It wasn't a good idea to look back. That I ought to try to do the best I could with each case I had, do the best I could, and then don't look back. Make a decision and go on. And I followed that practice at the Supreme Court, and I'm glad I did. Because I think the effort ought to go into the front end when you're reviewing the case, and researching it, and deciding for yourself what the answer is. Put all of the effort you can into it. Make a decision and don't look back. You're not going to be a happy person if usual always looking over your shoulder. And I don't do that.

Ted Simons: Not so much even over your shoulder, but let's talk at the time of the decision, one side was very upset with you regarding bush V. gore.

S O’ Connor: Oh, yes, I know.

Ted Simons: Another side was also very upset with you regarding abortion decisions.

S O’ Connor: oh, yes.

Ted Simons: Abortion rights and these sorts of things. Do you hear those criticisms?

S O’ Connor: Well, of course you do. I mean, nobody is deaf, dumb, and blind on the court. You can read a newspaper, you can see a television talk show or something. And so we are -- we're all aware of strong feelings. And even members of the court can express themselves very strongly both at the oral conferences and in writing of opinions. Some of the language in written opinions is very strong. When the person -- the Justice O'Connor who's writing feels really strongly about something, they may say things that as you read it, you say "oh, my goodness, that's a little strong." But that's the way it is. And you just have to try to respond even handedly and respond with the best arguments you can make to support your own view.

Ted Simons: There are been some critics and some critics still regarding your tenure, saying that you did not -- you mentioned case-by-case basis, and that's how you looked at things. I think most folks would suggest -- but they suggested that there was no overriding judicial philosophy, so justices in the future may not be able to glean much from what you decide.

S O’ Connor: Oh, I think they will. Every case requires the resolution of some principle of federal law. The case presents some issue much federal law. Or we wouldn't take it. And so each decision we make is setting out some principle of law. You can write it very broadly so that you're going to pick up all kinds of things in the future. Or you can be more careful. And not try to decide every future case with this one. And I'm probably in the latter category.

Ted Simons: Do you think that the other justices were a little too much involved with judicial fills on any.

S O’ Connor: Oh, goodness, I'm not going to characterize them as a bunch. Different justices have different approaches. And I guess some justices over time and in history have tended to write more broadly than they had to on a given principle. I tended not to do that because I didn't want to foreclose other arguments in the future that might persuade the court differently.

Ted Simons: The importance of diversity on the court, talk to us about that. And I seem to have -- remember reading that you were not entirely pleased when you first announced you were going to retire from the bench that the initial look was toward a man as opposed to a woman. First of all, is that correct?

S O’ Connor: Well, I did hope that when I stepped down from the Supreme Court that I would be replaced by a woman. It took 191 years to get one woman on that court. That's a long time. And I didn't want us to wait 191 years to get the second. I thought that was unfortunate. And so I had hoped that I would be succeeded by another woman. Justice Ginsburg was there when I was there. Our nearest neighbor is Canada. Canada has a Supreme Court of nine members, just as we do. And it has four women on the court, and the chief justice is a woman. So very close to us we've seen examples of courts that function very well with more women, and I hope over time we will see more women on the U.S. Supreme Court as well.

Ted Simons: And I ask the question as well because there was a recent regarding Justice Sonia Sotomayor and her wise Latina comment, which got a lot of play in the media, and got a lot of folks on both sides going after each other, as they tend to do. What did you make of that comment?

S O’ Connor: Well, she probably had second thoughts about it after it created a furor, because you'd just as soon not go into the hearings and have them upset about something you said and having to try to clarify it. It's not much fun. It's been my view as a member of the court and when I was nominated that at the end of the day, a wise old woman and a wise old man are going to reach the same conclusion. That's probably true of Latinos as well as Anglos.

Ted Simons: And I mentioned the idea of people fussing and fighting as they tend to do. I know the O'Connor house project is kind of targeted toward the concept of civility and the concept of just getting along, especially lawmakers. Talk to us about the O'Connor house project.

S O’ Connor: I don't know that people are going to understand what that is. But my husband John and I built an adobe house in what became Paradise Valley, Arizona, out on a desert sort of a lot. And we had the adobes made out of the salt riverbed in Tempe, and they're just mud with some clay, and some straw, and then they're dried in the sun. Now, they're fragile in the sense that if you get them rained on, they're going to turn to mud again and wash away. So they have to be protected. I love the walls. I don't know if you've been in a building with them, but they're fabulous. That's what we wanted to achieve. And we did. And I use the house and my husband used it very often. He was chairman of several boards of local county hospital boards, and others while he was here, crippled children and so on. I was active in the legislature, I was in the senate, and eventually became senate majority leader. And on a number of occasions I would invite all of the senators, or if necessary, a smaller group, both democrats and Republicans, make some Mexican food, serve some beer, and make friends. And we did that at the house, sitting around the fire pit outside, enjoying Arizona's beautiful evenings. And when you get to know people and make friends, it's easier to work with them when you have to go to work. And so part of the idea of the O'Connor House is to remind people in public life that you can sometimes achieve civic action by civil talk around a fire pit, over a little Mexican food. I mean, that helps when you make friends. I think it makes it easier to resolve problems and issues.

Ted Simons: What happened to that, though? Things have been divisive, especially in Washington, but here in Arizona as well, everyone seems to be on everyone else with language that no one seemed to be comfortable using in the past.

S O’ Connor: I know. Very distressing. I have -- I'll tell you what I think we need to do in Congress. I think we need to adopt rules that say that the members of Congress cannot travel home every weekend, that they have to stay in Washington to be available for their work in the house and the senate, three weeks a month. Take the day off Sunday, but otherwise, be available for committee meetings, floor action, committee meetings, whatever it is. And not let them leave. At present, the members of Congress tend to leave on Thursday afternoon and go home, if it's all the way to California, they go all the way to California. They come back on Tuesday, they arrive maybe in the morning and then spend part of Tuesday, all of Wednesday, and part of Thursday before they leave again. There is never time for them to become friends, to even know each other. They don't even meet people in their own party, much less in the other party. So if I could wave a magic wand, I would adopt rules that would require them to be there over a longer stretch of time, then give them the fourth week off, go home for the whole week. But most of the time be there so that you get to know the other members with whom you're working. It's easier to accomplish something if you do that.

Ted Simons: That's an interesting idea. That's the first I've heard of that, and it does make sense. You're almost forced, sometimes like a big family, where not everyone gets along, but during Thanksgiving and Christmas you're forced to sit around the table and get along.

S O’ Connor: That's right. And I think that's what we need to do more of. Because if you know people well, it's going to be harder to be nasty and disagreeable. You might reach a compromise on a few things.

Ted Simons: One of the many things that people seem disagreeable about, regards the judiciary, obviously something very important to you, an independent judiciary as well is important to you, talk about -- you seem to think that an independent judiciary is under attack. Correct?

S O’ Connor: No. I think that when the framers of our constitution devised a system of government for our nation, they created three branches, separate branches, each with some power over the other two. That included the judicial branch. And the framers envisioned appointment of federal judges by the president with the consent basically of the senate. That's the system. Now, every colony and every original state had the same kind of a system. They had a system where the governor would make the appointments, and then it would be confirmed by the state senate or state legislature. And that worked pretty well. When Andrew Jackson became president of the United States, he was quite a pop list, and he was very popular in our country. He had saved the country down in New Orleans. And it was his view that states ought to elect their judges. It was Andrew Jackson who started to persuade states to set up a different system of judicial selection. The first state to go along was Georgia. But others followed suit. Arizona, when it became a state, provided for the elect -- popular election of judges. Now, no other nation in the world has popular election of judges. Just us. And just part of the United States. Some 20-plus states still have some form of judicial elections. And I don't think that's the best way to pick a judge. I think it's better if they're appointed, and if you need recommendations you can set up a bipartisan commission, and get some recommendations. And they can conduct interviews, and look it over, and say to the governor, here, governor, here's several names. And we think these people are qualified. Why isn't that a good system? And then the objection is, but we as voters don't want to give up our rights to vote. We don't have to. Because under these selection systems, you can provide for retention elections. Let the newly appointed judge serve for two or three years, then put their name on the ballot, and report everything you know about how they have behaved on the bench, what kind of a job they've done, get comments from everybody. And then let people decide, do you want to keep this judge, yes or no?

Ted Simons: But is that kind of accountability, though, is that enough? Will that be enough to police -- and critics --

S O’ Connor: it absolutely is. You can kick them out if you don't like them. And it's possible if Arizona does, to keep very good records of what the judge does. How many times has that judge's decisions reversed? Does that judge have a bigger record of mistakes than others? Have there been complaints in the courtroom? What are the litigants say? What do the lawyers say? What do the witnesses say? These are ways to check on how a judge does his or her job.

Ted Simons: But you know as well as I do, the phrase judicial activism has been very popular here of late, and we'll have lawmakers who say that granted, they may not have many complaints and all these things regarding judicial retention and selection are concerned, but they're taking away our rights, they're taking away what we were supposed to be doing.

S O’ Connor: Those are gross exaggerations. If it's a question of law as it is for appellate courts, they're not deciding facts, they're deciding a legal principle in the state court, some state legal principle, in the federal court, some federal legal principle. And they're not there to take away people's rights or to be active. They're there to decide an actual question. And then it boils down to how broadly do you want them to write it up? I tended to be someone who wrote fairly narrowly, and I think that's OK. Not try to decide everything on one little case. But I think the retention election scheme with the periodic opportunity for voters to review the judge and see whether it will keep them is the better way to go. And I hope that some of our states that follow a different system will change given a chance.

Ted Simons: Speaking of states changing, I know you and others are talking about the idea of structural change for Arizona. Looking out and seeing things that aren't necessarily the way they should be. Talk to us about that. What would you like to see happen?

S O’ Connor: I think there are a number of areas where the legislature and Arizona voters need to look at our constitutional scheme and see if we need to make a few adjustments. We probably do. There is no -- very few states have the succession of governor if the governor leaves during office, go to the secretary of state. More states have a lieutenant governor in position who can then fulfill the task if the governor leaves. Arizona's had at least seven occasions in the last 25 years or so where the governor has left and didn't fulfill the term. And then in comes Arizona, the secretary of state. And when the voters voted for the secretary of state, they weren't thinking this, is going to be my new governor. So it might be helpful if Arizona did what many states have done, elect a lieutenant governor at the time they elect a governor. I think we need to give some thought to how many elected state officials we want to have. Do we really think we want an elected superintendent of schools, or do we want to elect the school boards? Does Arizona need an elected state mine inspector? It's the only state in the union that has one. That's a little quirk for Arizona. I mean, there are lots of things to look at. Another thing to look at is the initiative process. Arizona, like many western states, has an opportunity for voters to go get enough signatures to put a proposed law on the ballot for voters to say, I want this or I don't. Now, most states don't have that. But the western states do. And Arizona does. I think Arizona has run into a few problems with some of these initiative measures, particularly when they're not well drafted, and when there are issues about them. Now, one thing we can do is give a little more time for the secretary of state to review the petitions that are filed to make sure that the required number of voters' names are there. That it isn't some -- that it isn't signed by a lot of people who are not registered voters. That's the concern. And today we don't have enough time for that kind of a check to be made. We also don't have any provision where, for instance, the legislative council could review it to make sure that the title is correct and not misleading. We have some technical issues with initiative measures that need some attention.

Ted Simons: And everything you've talked about, almost everything we've talked about together on this program but most of it involves civic education. We only have a minute and a half or so left. I know that's very important to you. It doesn't seem like a lot of folks are aware of all these things.

S O’ Connor: That's right, they're not. And only barely half of the 50 states in the United States still make civics and government a requirement for high school. Did you know that? It's just -- we're abandoning that. And we have a rather intricate system of government in this country, and every young person needs to learn about it if they're going to be involved, if they're going to be effective as citizens. We need to do that.

Ted Simons: Well, obviously with your name on it, it's going to get done some way, somehow.

S O’ Connor: I hope we can help.

Ted Simons: It was such a pleasure to have you here. We'd love to get you back on as soon as we can, because there's so much to talk with you about. But thank you so much for being here to help us christen our new set.

S O’ Connor: Thank you, Ted. You have very nice new offices here for your show, and for other programs that are going to be broadcast from KAET.